Citation Nr: 0917172
Decision Date: 05/07/09 Archive Date: 05/12/09
DOCKET NO. 05-08 875 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUES
1. Entitlement to service connection for residuals of left
foot injury.
2. Entitlement to an initial disability rating higher than 10
percent for a left shoulder disability.
REPRESENTATION
Veteran represented by: Colorado Division of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
H. E. Costas, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from
August 1986 to October 1988.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of rating decisions in April 2003 and in June 2003
of the Department of Veterans Affairs (VA) Regional Office
(RO) in Denver, Colorado.
In May 2008, the Board remanded the matter in order to
schedule the Veteran for hearing. In February 2009, the
Veteran appeared at hearing before the undersigned Veterans
Law Judge. A transcript of the hearing is in the record.
The claim for an initial higher rating for a left shoulder
disability is REMANDED to the RO via the Appeals Management
Center in Washington, DC.
FINDING OF FACT
A left foot fracture pre-existed service and was not made
permanently worse by service, and current left foot pain was
not affirmatively shown to have been present in service, and
the current left foot pain is unrelated to an injury,
disease, or event of service origin.
CONCLUSION OF LAW
A pre-existing left foot fracture was not aggravated by
service; and a left foot disability other the pre-existing
left foot fracture was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1131, 1153, 5107(b) (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.303, 3.306 (2008).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and
implemented in part at 38 C.F.R § 3.159, amended VA's duties
to notify and to assist a claimant in developing information
and evidence necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA
receives a complete or substantially complete application for
benefits, it will notify the claimant of the following: (1)
any information and medical or lay evidence that is necessary
to substantiate the claim, (2) what portion of the
information and evidence VA will obtain, and (3) what portion
of the information and evidence the claimant is to provide.
The notification requirements are referred to as Type One,
Type 2, and Type Three, respectively. See Shinseki v.
Sanders, 556 U.S. __ (2009), No. 07-1209. slip op. (S. Ct.
April 21, 2009).
Also, the VCAA notice requirements apply to all five elements
of a service connection claim. The five elements are: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
On the claim of service connection, the RO provided pre- and
post- adjudication VCAA notice by letters, dated in July
2002, in July 2004, and in March 2006. The Veteran was
notified of the evidence needed to substantiate the claim of
service connection, namely, evidence of current disability;
evidence of an injury or disease in service or an event in
service, causing injury or disease; and evidence of a
relationship between the current disability and the injury,
disease, or event in service.
The Veteran was notified that VA would obtain service
records, VA records, and records of other Federal agencies,
and that he could submit other records not in the custody of
a Federal agency, such as private medical records, or with
his authorization VA would obtain any non-Federal records on
his behalf. The notice included the provisions for the
effective date of a claim and for the degree of disability
assignable.
On the claim of service connection, the documents
substantially complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence); of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); and of Dingess v. Nicholson,
19 Vet. App. 473 (notice of the elements of the claim).
To the extent that the VCAA notice came after the initial
adjudication, the timing of the notice did not comply with
the requirement that the notice must precede the
adjudication. The procedural defect was cured as after the
RO provided substantial content-complying VCAA notice the
claim of service connection were readjudicated as evidenced
by the supplemental statement of the case, dated in March
2008. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007)
(Timing error cured by adequate VCAA notice and subsequent
readjudication and prejudicial analysis is not needed.).
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim. The RO has obtained the service
treatment records, VA records and private medical records.
For the claim of service connection for residuals of a left
foot injury, the evidence of record is sufficient to decide
the claim.
As there is no indication of the existence of additional
evidence to substantiate the claim, the Board concludes that
no further assistance to the Veteran in developing the facts
pertinent to the claim is required to comply with the duty to
assist.
REASONS AND BASES FOR FINDING AND CONCLUSIONS
Principles of Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1131.
A veteran is considered to have been in sound condition when
examined, accepted and enrolled for service, except as to
defects noted at entrance into service. Only such conditions
as are recorded in examination reports are to be considered
as noted. 38 U.S.C.A. § 1111.
A preexisting injury or disease will be considered to have
been aggravated by service, where there is an increase in
disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. Clear and unmistakable evidence
(obvious or manifest) is required to rebut the presumption of
aggravation where the preservice disability underwent an
increase in severity during service. Aggravation may not be
conceded where the disability underwent no increase in
severity during service on the basis of all the evidence of
record pertaining to the manifestations of the disability
prior to, during and subsequent to service. 38 U.S.C.A. §
1153; 38 C.F.R. § 3.306.
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service, or if
preexisting such service, was aggravated by service. This
may be accomplished by affirmatively showing inception or
aggravation during service. 38 C.F.R. § 3.303(a).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology after discharge is
required where the condition noted during service is not, in
fact, shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. 38 C.F.R. §
3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Claim of Service Connection
Left Foot
The service treatment records show that on entrance
examination there was a history of a left foot fracture,
which was not considered physically disqualifying. The
remainder of the service treatment records contains no
complaint, finding, history, treatment, or diagnosis of a
left foot abnormality.
After service, in September 2003, the Veteran complained of a
left foot problem, which he related to an injury during
service. The diagnosis was left foot pain.
On VA examination in August 2005, the Veteran stated that he
injured his left foot during airborne school. X-rays
revealed a normal left foot. No left foot abnormality was
diagnosed.
Analysis
As a left foot fracture was noted on entrance examination,
the question is whether the pre-existing left foot condition
was aggravated by service.
A pre-existing injury or disease will be considered to have
been aggravated by service, where there is an increase in
disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disability. Aggravation may not be conceded
where the disability underwent no increase in severity during
service on the basis of all the evidence of record pertaining
to the manifestations of the disability prior to, during and
subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.
The service treatment records contain no complaint or finding
of a left foot injury or abnormality. After service, left
foot pain was diagnosed in 2003, almost 15 years after
service. On VA examination in 2005, no left foot abnormality
was noted by clinical finding or by X-ray.
In the absence of evidence of any left foot complaint or
finding during service and for almost 15 years after service,
aggravation is not conceded as the pre-existing left foot
fracture did not increase in severity during service on the
basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during, and
subsequent to service. Stated differently the pre-existing
left foot condition was asymptomatic on entrance examination
and during service and for about 15 years after service.
As there was no permanent increase in disability during
service, the rebuttable presumption of aggravation has not
been established, and as there is no increase in disability
during service, service connection by aggravation is not
established. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir.
2004).
To the extent the Veteran is claiming a left foot disability
apart from the pre-existing foot condition, on the basis of
the service treatment records, a chronic left foot disability
was not affirmatively shown during service. 38 U.S.C.A. §
1131; 38 C.F.R. § 3.303(a).
As the service treatment records lack the documentation of a
chronic left foot disability and sufficient observation to
establish chronicity during service, and as chronicity in
service is not adequately supported by the service treatment
records, then a showing of continuity of symptomatology after
service is required to support the claim.
After service, left foot pain was diagnosed in 2003 about 15
years after the Veteran's discharge from service. The
absence of documented complaints of left foot pain during
service and for 15 years after service is persuasive evidence
against continuity of symptomatology. 38 C.F.R. § 3.303(b);
Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom.
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was
proper to consider the veteran's entire medical history,
including a lengthy period of absence of complaints.).
Here, the evidence of continuity fails not because of the
lack of medical documentation, rather the Veteran does not
assert continuity. Buchanan v. Nicholson, 451 F. 3d 1331,
1336 (Fed. Cir. 2006). And as there is no credible evidence
of continuity there is no evidence of a possible association
between pain, first shown after service, and an injury or
event in service to warrant further development, that is,
obtaining a nexus opinion under the duty to assist. McLendon
v. Nicholson, 20 Vet. App. 79, 83 (2006).
As for service connection based on the initial documentation
after service under 38 C.F.R. § 3.303(d), although the
Veteran is competent to describe pain, where as here the
determination involves a question of medical causation, where
a lay assertion on medical causation is not competent
evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993),
competent medical evidence is required to substantiate the
claim.
Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer a medical diagnosis, statement, or
opinion. 38 C.F.R. § 3.159. For this reason, the Board
rejects the Veteran's statements as competent evidence that
his left foot pain is related to his period of service.
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
As the Board may consider only competent medical evidence to
support its finding on a question of a medical causation,
where a lay assertion on medical causation is not competent
evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), and
as there is no competent medical evidence that the Veteran
has a left foot disability attributable to service, the
preponderance of the evidence is against the claim, and the
benefit-of-the-doubt standard of proof does not apply. 38
U.S.C.A. § 5107(b).
ORDER
Service connection for residuals of a left foot injury is
denied.
REMAND
The Veteran underwent a left shoulder arthroscopy with
subacromial decompression, debridement of the labrum, and an
open distal clavicle resection in December 2008. The Veteran
has also testified that the surgery resulted in some nerve
damage. The surgery represents a material change in the
Veteran's disability, and a reexamination is needed. 38
C.F.R. § 3.327.
Accordingly, the case is REMANDED for the following action:
1. Ensure VCAA compliance with Vazquez-
Flores v. Peake, 22 Vet. App. 37, 43
(2008)
2. Afford the Veteran a VA examination to
determine the current residuals of the
left shoulder surgery in December 2008.
The examiner is asked to describe range
of motion in flexion and in abduction in
degrees with any additional functional
loss due to pain, painful movement,
fatigue, lack of strength, or
incoordination with repetitive use;
recurrent dislocation, nonunion, or
malunion.
Additionally, the examiner is also to
describe any neurological impairment.
The claims folder should be made
available to the examiner for review.
3. After the above development is
completed, adjudicate the claim. If the
benefit sought remains denied, furnish
the Veteran and his representative a
supplemental statement of the case and
return the case to the Board.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
George E. Guido, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs